What are some of the critical distinctions between a lawyer’s approach to litigation and a lawyer’s approach to mediation? First, the mediator is an ambassador, not a decision maker. In litigation, we try to convince neutral parties to rule in our favor. Typically, one neutral decides the facts and another neutral decides the law. In the end, those neutrals acting together will bind us to a ruling. But in mediation, the only neutral party—the mediator—is utterly powerless to bind us to anything. Rather, the mediator serves as a go-between whom the parties use to bridge the divide between their views about the case and to establish enough common ground to induce and support a settlement.
Second, in mediation, the parties are the key decision makers, while in litigation the judge is the key decision maker, prized for her purported neutrality. After hearing what we have to say, she delivers typically an all-or-nothing, zero-sum judgment producing both a winner and a loser. By contrast, in mediation, the decision makers are the parties themselves. By definition, mediation depends on compromise between two opposing, perhaps polarized, positions. Over the course of the proceeding, we hope to edge our adversaries toward an acceptable settlement point. We use our skills in diplomacy and the mediator’s unique role to massage the parties’ positions toward each other.
Third, in mediation, the adversary is not the enemy. In litigation, it may well be an effective litigation tool to attack and vilify the adversary. But the premise that we can prevail in litigation by vanquishing our opponent has no place in mediation. Everything that we share with our adversary in mediation must be calculated for its effect on that adversary. We alienate or humiliate at our peril. Indeed, often our most important goal in mediation is to alter our adversary’s impression of our client, which can directly affect the other side’s evaluation of the case.
Mediation involves and requires an ongoing exchange of information. This is quite distinct from litigation presentations. At trial, each side bombards the judge or jury with information toward the goal of attaining a single response in the form of a decision or verdict. We selectively present that which favors our position and what we tactically must concede. By contrast, mediation involves an ongoing exchange of information. For the exchange to be successful, both parties—and the mediator—must share the goal of keeping information flowing. Typically, when it stops, so, too, does the mediation.
Setbacks in mediation can actually be a positive. We all dread the trial setback—the witness collapsing on cross, the document we missed, the fatal admission extracted by our adversary from our expert. In mediation, a setback can be a tool that a party can use to justify movement and bring the case closer to resolution. And this “setback” is far more benign in a mediation setting.
Opening statements. The way openings succeed in mediation is vastly different from how opening statements work at trial. Our trial opening, calculated to lay out the evidence and showing our entitlement to a win, has little value in mediation. Because much of a trial opening is often directed at the failings of the adverse party, it is a potentially divisive instrument if deployed poorly in mediation.
The mediation opening should be a tone-setter. It will not win the case or ensure a verdict, but a well-played opening can begin realigning the parties from an adversarial mode to a more cooperative posture. Remember, your target audience is not the mediator, but the adversary. Of course, the approach will vary depending on the case and the circumstances. At times, a strong opening may be appropriate. The plaintiff’s opening in a personal injury case is a prime example. Some venting and this “day-in-court” experience may facilitate settlement—especially if received empathetically from the defense side. Where it would be unheard of in trial, the mediating parties themselves often have a role to play in the openings.
Sometimes, mediation provides a path to resolve divides between lawyers and their own clients, too. In the years of preparation preceding a trial, the parties and their lawyers strategize and agree on tactics and approach. Generally, there is harmony on each side of the courtroom as to overall approach. This is not necessarily true for mediation. It is not uncommon for lawyers to find that they are also mediating with their own clients. The mediator may discover that her greatest challenge is not to settle the case but to get a given lawyer and his client on the same page. In litigation, ex parte communication with the judge is virtually unknown as it is generally improper. Ex parte communication with the jury is professional misconduct. By contrast, success in mediation usually requires extensive ex parte communication with the mediator.
A unique brand of advocacy. This, in turn, calls for a unique brand of advocacy. The advocate must decide what to share with the mediator and what the mediator may share with the adversary, while remaining at all times credible and ethical. Much of the facilitated negotiation thus occurs behind the scenes as we rely on the mediator, who not only passes along our messages but also can massage them to keep things going.
The confidentiality of mediation facilitates resolution. Trial is a public and recorded proceeding. In stark comparison, mediation is confidential from stem to stern. In a court-appointed mediation, the mediator is typically limited to reporting only whether the case has settled. This secret environment facilitates resolution. Although parties seldom fully drop their game faces, the more candor the mediator can achieve, the better the prospects for success. Confidentiality is indispensable in providing a safe environment for the exchange of information.
Mediation provides the opportunity to engage a true specialist with special expertise and experience. Generally, in civil litigation, the judge has no applicable specialized knowledge. The trial judge is usually a generalist. Randomly assigned without any consideration of the nature or substance of the litigation, the judge is called on to apply the law without any particular expertise in the unique law or technical facts in which the case is rooted.
By contrast, the parties agreeing to mediation may select a mediator with highly specialized expertise. There are two schools of thought. In my litigation practice in aviation law and insurance coverage, for example, I prefer to enlist a mediator who has expertise in these areas. The obvious advantage is that we are spared the necessity of educating the mediator on technical aspects or particularly esoteric areas of the law. If, on the other hand, the parties are willing or prefer to educate a mediator in new areas, subject-matter expertise need not be a prerequisite.
ABA Section of Litigation
This article is an abridged and edited version of one that originally appeared on page 42 of Litigation, Fall 2018 (45:1).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
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